Federal Judge Strikes Down New York City Law Requiring Graphic Anti-Smoking Posters at Point-of-Sale

According to an article in the New York Times, the law was struck down because it violates the preemption clause in the Federal Cigarette Labeling and Advertising Act (FCLAA), which regulates the warnings that cigarette companies must place on cigarette packages and advertisements but preempts state and local regulation of same.

According to the article: "Judge Rakoff also cited a federal law enacted in 1965, the Labeling Act, which gave the federal government exclusive authority over cigarette warnings. That law, he wrote, seeks to balance public and commercial interests: the federal government protects the public, but also sets clear and uniform cigarette regulations that protect “commerce and the national economy.” In his ruling, Judge Rakoff pointed out that the Labeling Act also contained a provision forbidding any state laws from conflicting with the federal government’s policies on cigarette warnings and advertisements. That, he concluded, makes the city’s placard policy illegal."

According to the article, the New York City health department said it would appeal the ruling and issued the following statement: "The city’s warning signs portray completely factual messages about the dangers of smoking. They do so at the exact moment when smokers are making decisions about purchasing tobacco. We believe it is the city’s responsibility to help smokers quit and to protect children from the harmful effects of tobacco smoke."

The Rest of the Story

If it is the city's responsibility to promote healthy behavior by requiring stores to discourage consumers from buying their unhealthy products at point-of-sale, then shouldn't the city require all grocery stores to put graphic warning posters near the junk food aisle urging customers not to purchase these unhealthy snacks?

Shouldn't the city also require grocery stores to post graphic posters at the soda aisle urging customers not to purchase soda because of the morbidity and mortality caused by obesity, to which soda contributes significantly?

Shouldn't the city require tanning salons to post disgusting pictures of skin cancers at their entrances, urging potential customers not to enter?

Shouldn't wood stove stores be required to post graphic posters depicting the horrible consequences of lung disease, which we know is caused by wood smoke exposure?

New York City's graphic anti-smoking poster law was supported by twenty-five anti-smoking groups, including the American Medical Association, American Legacy Foundation, American Cancer Society, and American Lung Association, which intervened by filing an amicus brief in support of the law.

According to a press release announcing the submission of the amicus brief, Cheryl G. Healton, DrPH, president and CEO of Legacy, stated: "This filing reiterates how serious public health and policy leaders are about doing everything it takes to put an end to the hundreds of thousands of needless deaths from tobacco in this country every year. ... Simply put, public health must always trump tobacco sales."

If these groups are serious about doing everything it takes to put an end to the hundreds of thousands of needless deaths from tobacco in this country, and if they truly believe that public health must always trump tobacco sales, then why did most of these very same organizations support legislation that:

Ensures that nicotine will never be removed from tobacco products;

Exempts menthol from the ban on all other flavored cigarettes;

Restricts the ability of the FDA to increase the age of sale of tobacco products;

Precludes the FDA from regulating the places where cigarettes can be sold;

Makes it impossible for reduced risk products to be successfully developed and marketed; and

Puts the government in the position of officially approving cigarettes.

These organizations are a bunch of hypocrites. They state that they are doing everything possible to put an end to the hundreds of thousands of needless deaths from tobacco, yet at the same time, they worked to enact legislation which institutionalizes tobacco products, makes it impossible for safer tobacco products to enter the market, and ensures that youth access to tobacco cannot be effectively curtailed.

Now, these groups are once again promoting feel-good legislation that does very little to actually reduce tobacco use, but allows them to pretend that they are doing something meaningful.

These groups do not have the courage to stand up for actions that would actually be effective. They are unwilling to take a stand on principle, rather than on politics and political feasibility.

If tobacco products are so unsuitable for public consumption that New York City must require stores to actively discourage customers from buying their own products, then New York City needs to simply prohibit stores from selling that product. Clearly, it is not the public's health that is of paramount importance here - it is preserving cigarette sales in the city.

Thus, this law does the exact opposite of what its anti-smoking supporters say it does: it puts economic profits above public health.

If these groups support such extreme intervention on the part of New York City -requiring stores to actively discourage their customers from buying their products with graphic posters urging their customers not to buy their products - then why do they not support the step of simply telling these stores: "Sorry, but these products are so deadly that we cannot allow you to sell them."

The answer, obviously, is that these organizations are putting tobacco sales above the public's health. While these posters will do very little to discourage people from smoking, a ban on the sale of tobacco in they City would likely have a significant effect - especially in terms of reducing youth smoking. But no, instead of doing something that would actually make a difference, these groups are supporting a feel-good policy that makes absolutely no sense and caves in to political pressure and purely economic concerns.

Moreover, if these groups wanted local governments to be able to regulate the advertising and labeling of tobacco products, they should have insisted that the FDA tobacco legislation repeal the FCLAA's preemption of local cigarette labeling and advertising regulation, something which I pointed out in my critique of the proposed legislation.

The rest of the story is that these anti-smoking groups are hypocrites. They state that the public's health should always be placed above tobacco sales. Yet they supported legislation that compromised the public's health to protect tobacco sales. This is the definition of hypocrisy.

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.